The Revised Canons

by Philip Jones

For the purposes of legal study and analysis, the revised canons may be divided into 5 categories:

(1) regulations made under statutory power conferred by a ‘parent’ Measure, in effect secondary legislation

(2) regulations made under the ancient legislative power of the Convocations, recognised by common law and now vested in the General Synod (Synodical Government Measure 1969, s.1 and schedule 1)

(3) declarations or summaries of, or references to, statute and common law already in force

(4) mere exhortation, advice and guidance

(5) doctrinal statements

In the first edition of the revised canons, published in 1969, the canons comprised only categories (2) to (5).  Category (1) canons were not introduced until the 1970s. 

A single canon may fall into more than one category, and different provisions of the same canon may fall into different categories.  Categories (3) to (5) are not proper legislation at all.  The difference between categories (2) and (3) is often unclear.  A particular canon may be introducing a new rule for the very first time, or merely restating an old rule.

The 1969 canons resemble a legal ‘handbook’, a guide to the relevant law for those involved in the ministry of Word and Sacrament.  The 1969 edition was the fruit of the 1947 report The Canon Law of the Church of England.  The draft canons appended to the 1947 report cite statutes, legal commentaries and case law for their authority.  This suggests that the intention was to declare or clarify existing law, rather than make new law.

Category (4) canons may have derived from category (3).  They originated at a time when people were legally obliged to attend their parish church, and to pay for its repair through church rates.  Such obligations are, of course, no longer enforceable.  Hence they have been recast as guidance for churchgoers, particularly those involved in parochial administration.  Many of the canons in section F (‘Things appertaining to Churches’) take the form of guidance.

The ‘parent’ Measures in category (1) of the revised canons were passed between 1972 and 1993, a period of approximately 20 years:

(1) Admission to Holy Communion Measure 1972

(2) Clergy (Ordination and Miscellaneous Provisions) Measure 1964, s.9(2), though inserted much later by the Clergy (Ordination) Measure 1990, s.1

(3) Deaconesses and Lay Ministry Measure 1972

(4) Deacons (Ordination of Women) Measure 1986

(5) Ecumenical Relations Measure 1988

(6) Legal Aid and Miscellaneous Provisions Measure 1988

(7) Miscellaneous Provisions Measure 1976

(8) Priests (Ordination of Women) Measure 1993

(9) Worship and Doctrine Measure 1974

The Admission to Holy Communion Measure provides that ‘the rubric … shall not prevent the General Synod from making provision by canon and regulations …’.  The wording of the other ‘parent’ Measures is that ‘It shall be lawful for the General Synod to make provision by canon …’.

Whatever their benefit to the Church, the post-1969 canons have spoiled the character of the 1969 canons as a coherent, unified code or handbook of law for those involved in ministry.  Their subject-matter is the same as that of the 1969 canons, but their character is different.  They are the secondary legislation of different parent statutes, so do not sit comfortably with a single unified code.  Nor were they introduced simply to clarify existing law.  Rather, their purpose was to reform the Church’s ministry of Word and Sacrament.  This required the authority of primary legislation.

The Worship and Doctrine Measure 1974 was central to the policy of reform.  That Measure and the canons promulged under its authority (canons B1-5) form a code of law in their own right, regulating the public worship of the Church following the abolition of the 1662 regime.

The other post-1969 legislation is a response to the sociological changes that have occurred since 1662.  The right of baptised non-Anglicans to receive Holy Communion is confirmed (Admission to Holy Communion Measure).  Joint worship and ministry is permitted between the Church of England and non-conformist Churches under the Ecumenical Relations Measure 1988.  The 1988 Measure and the canons promulged thereunder (B43-44) constitute a code of ecumenical law, similar to the 1974 code of liturgical law.

Lay ministers are given a considerable responsibility for ministry (Deaconesses and Lay Ministers Measure 1972).  Women may be ordained (1986 and 1993 Measures).  Divorced persons may also be ordained (amended 1964 Measure).  Formalities of admission to office that are deemed anachronistic may be abolished (1976 Measure).

The doctrinal canons of category (5) are not secondary legislation, but they now depend for their legal force on the definition of doctrine now contained in the Worship and Doctrine Measure 1974, s.5(1).

Canons are amended from time to time to take account of changes in the statute law, but such amendments do not constitute secondary legislation.

It is nearly 20 years now since the canons were last used as a form of secondary legislation (the 1993 Measure).  The next use of canons as secondary legislation is likely to be the ordination of women to the episcopate.